Case Note 2021/8

UN Human Rights Committee: Denny Zhao v. The Netherlands

Access to justice and remedy for Denny Zhao, one of the Netherlands’ 13 000 ‘unknown’ children



The Netherlands has not ratified the 3rd Optional Protocol to the Convention on the Rights of the Child (CRC) on a communications procedure (CRC OP3). For that reason, Denny Zhao (D.Z.), who was born in February 2010, sought justice from the Human Rights Committee (HRC), claiming violations under articles 2(2), 3 and 24 of the International Covenant on Civil and Political Rights (ICCPR). D.Z. won his case, but it is nevertheless interesting to ponder how the case might have looked if it was brought under the CRC OP3. This case note briefly traverses the facts of the case, considers the approach of the majority views of the HRC, and touches on the dissents. It also examines the gaps in the legal system of the Netherlands, and analyses the remedy that was handed down. The case note concludes by reflecting on how the case could have been framed if it was brought to the CRC Committee under the CRC OP3, and what additional advantages that could have brought for D.Z.


D.Z. was born in the Netherlands, and lived there for the 11 years that preceded the case. But the Netherlands did not recognise him. According to the Municipal Database of Utrecht, he was annotated as being of ‘unknown nationality’. His mother was born in China, but was abandoned after her younger brother was born during the era of the one child policy. She was trafficked to the Netherlands while she herself was still a child, and following her failed asylum application, she was forced into prostitution. She escaped and ran to the police who investigated the trafficking claims, but were unable to find sufficient evidence to prosecute. She had a temporary residence permit while the investigation lasted but that was removed and at the time that the case came to the HRC, she was still considered an ‘illegal alien’. This extra-terrestrial-sounding label attached not only to her, but also to her son, D.Z. His mother made numerous attempts to get the Chinese authorities to accept or deny D.Z.’s Chinese nationality, as this was what was needed to change the designation from ‘unknown’ in the Netherlands civil registry. If those efforts had resulted in a rejection of D.Z.’s Chinese nationality, then he could have been registered as stateless in the Netherlands, and then he could have benefited from Dutch nationality. D.Z. was not alone in this predicament – the Netherlands has approximately 13 000 ‘unknown’ children in its registry, most of whom were born in the Netherlands. Despite many efforts at the domestic level, including applications to the municipality of Katwijk and appeals to the Court of the Hague and the Council of State (Administrative Jurisdiction Division), D.Z. remained ‘unknown’ and thus he and his mother looked to the international treaty bodies for a solution. The Netherlands’ failure to ratify the CRC OP3 meant that D.Z.’s best available option was to obtain access to justice under the ICCPR.

Drilling down into the issue of statelessness

Stateless individuals are susceptible to various human rights violations because, not being a national of any state, they lack protection at the domestic level. The 1961 Convention on the Reduction of Statelessness (to which the Netherlands is a party) calls on states to provide for citizenship in the country of their birth through the operation of jus soli, in cases where a child would otherwise be stateless. This has clear implications for children whose parents have irregular status. The 1954 Convention Relating to the Status of Stateless Persons provides that stateless persons should be provided with socio-economic rights, but this rests on such persons being legally present in the host state. There is no absolute requirement in international law for states to provide citizenship.1 Indeed, in the D.Z. case the Committee points to its own General Comment No. 17: Art 24 (Rights of the Child) (1989), where it clearly provides that the purpose of article 24(3) of the ICCPR was to “prevent a child from being afforded less protection by society.” Although the HRC in this General Comment does not explicitly impose an obligation on States Parties to provide stateless individuals with a nationality, the Views point out that the General Comment notes that States are “required to adopt every appropriate measure both internally and in cooperation with other States, to ensure that every child has a nationality when he is born…” (para 8.2).

In the present matter, it is clear that the Netherlands, as a State party to the ICCPR, had a responsibility towards the author of the complaint. Article 24 of the ICCPR explicitly provides that every child has the right to certain measures of protection, the right to be immediately registered after birth and the right to acquire a nationality. Further, articles 2 and 3 of the ICCPR impose an obligation on States Parties to take all the necessary legislative and administrative measures to implement the rights contained in the ICCPR into their domestic law.

The nub of the problem with the law in the Netherlands was that, despite all the efforts taken by the mother on behalf of D.Z., even with the assistance of lawyers, it could not be proved that D.Z. was stateless. This was because the Chinese authorities did not produce any information confirming that D.Z. had Chinese nationality, and also failed to issue a statement that he did not have Chinese nationality – either of which would have enabled a change in his status of being ‘unknown’. The Netherlands authorities and courts steadfastly held to the view that the onus of proof lay solely on the author, and that they had no obligation to investigate. In this regard, the HRC pointed (at para 8.3) to the UN High Commissioner for Refugees’ Guidelines on Statelessness No. 4 (“Ensuring every child’s right to acquire a nationality through articles 1-4 of the 1961 Convention on the Reduction of Statelessness”), which asserts that contracting States must accept that a person is not a national of a particular State if the authorities of that State refuse to recognize that person as a national. This can be demonstrated if a state refuses to recognize that the person is a national, either explicitly or “by failing to respond to inquiries to confirm an individual as a national”. If the Netherlands had taken that approach, then the failure of the Chinese authorities to respond to queries about D.Z. would have been sufficient to establish that he was stateless. The guidelines also note that given the difficulties facing individuals to prove their status the burden to do so should be shared by the contracting state, i.e. the Netherlands in the present case.

In most cases, statelessness has a severe impact on those affected. They are denied access to education, health care, job opportunities and, essentially, to self-development which could benefit society. Without an identity, a stateless individual is stuck in legal limbo. In many cases statelessness gets passed down from parent to child and so the cycle of statelessness continues.

The UNHRC provides a list of contributing factors that play a role in statelessness. The factor most relevant to the case of D.Z. is the failure of individuals to prove that they have a link to another State. The author’s mother failed to establish her link to China based on the restrictive birth registration process in that country, which in turn affected her son. In any event, the mother’s failure to prove her link to China does not absolve the Netherlands from acting in accordance with the obligations imposed on it under the ICCPR.

D.Z.’s claim and the State party’s response

Living in limbo for many years in the country of his birth (and the only country he has ever lived in), with no way of establishing his statelessness, formed the factual basis of D.Z.’s claim under article 24(3) of the ICCPR, which states that ‘Every child has the right to acquire a nationality’. This is the first claim under article 24(3) by a child that has resulted in Views from the HRC (Bingham and Klaas, 2021). The author also pointed out that this right has links to human dignity, the child’s personal development and the child’s individual identity. The other articles identified as being breached were article 2(2), the requirement to take the necessary steps to adopt such laws or other measures to give effect to the rights in the ICCPR, and article 2(3), the right to an effective remedy. The author pointed out that the violation of his rights to article 24(3) should be read alone, and also read together with article 2(2), because the problem did not arise from an isolated decision in relation to only his own case, but was caused by the failure of the authorities to pass legislation that would provide effective legal protection against statelessness. The violation of article 24(3) also had to be read with article 2(3) because the State had failed to provide him with an effective remedy.

The Netherlands’ response was refreshingly honest and to the point. The State acknowledged that D.Z. was unable to enjoy his right to acquire a nationality, and indicated that two bills were being prepared that would provide a procedure for determining statelessness as an option for children born stateless in the Netherlands who are not lawfully resident, and for such children to obtain nationality under certain conditions.

The State offered a remedy of compensation for the violation in the amount of €3000, and to compensate D.Z. for costs relating to the procedure brought before the HRC (paras 4.1 – 4.2). However, D.Z. decided to reject the offer, and continued with the case because he wanted a clearer acknowledgement of the rights violations, a guarantee that he would obtain Dutch citizenship and a guarantee of non-repetition. D.Z.’s lawyers provided a comprehensive list of outcomes that he was seeking. These pinpointed certain personal remedies including a retroactive permit, the immediate opportunity to apply for citizenship, and compensation amounting to €25 000. He also outlined a systemic remedy based on a best interest determination that would provide seamless protection for stateless children throughout the processes of applying for their status determination (para 5.2).

Admissibility, merits and remedy


Considering admissibility, the HRC found that there was no lis pendens on the matter and that the author had in fact exhausted all effective domestic remedies. The Committee then turned to the issue of the admissibility of specific claims. The author claimed violations of article 24 read in conjunction with article 2(2) of the ICCPR, which requires States parties to adopt laws or other measures to give effect to rights. However, the Committee found, in line with its own jurisprudence that article 2(2) “cannot be invoked as a claim in a communication in conjunction with other articles in the ICCPR unless such a failure to observe its obligations under article 2 is the proximate cause of a distinct violation of the ICCPR directly affecting the individual claiming to be a victim”. Therefore, the Committee elected not to consider whether the Netherlands violated its obligations under article 2(2), and focused on the author’s claim regarding the alleged violation of article 24 which deals with nationality.

The Committee was of the view that the author had sufficiently substantiated his claims under the right to a nationality in article 24(3) whether read alone or in conjunction with the right to a remedy in article 2(3) Therefore, the matter was deemed admissible.


Faced with the merits, the Committee emphasised the rights contained under article 24 of the ICCPR and also recalled the principle of the best interests of the child which is provided for under article 3 of the UNCRC.

With the aforementioned in mind as well as the difficulties involved in the acquisition of nationality, the Committee noted that the burden of proof must be shared between the claimant and the authorities of the State in question. The Committee also underscored the advice contained in the UNHCR Guidelines on Statelessness (No. 4), that “States need to determine whether a child would otherwise be stateless as soon as possible so as to not prolong a child’s status of an undetermined nationality”.

The Committee further reflected on its concerns regarding draft legislation that did not provide a coherent procedure for the determination of statelessness. Therefore, it was recommended that the State party review and amend the draft legislation in order to ensure that a person recognised as stateless be granted a residence permit in order to enjoy the rights enshrined in the ICCPR and to ensure that the stateless determination procedure is in line with international standards.


The HRC provided a remedy that imposed an obligation on the Netherlands to provide D.Z. with adequate compensation, review the decision on D.Z’s application to be registered as stateless, as well as his application to be recognised as a Dutch citizen. The Committee also requested that the State review the living circumstances of the author and the status of his residence permit, taking his best interests into consideration. Furthermore, the Committee asked the Netherlands to avoid future violations by ‘reviewing its legislation in accordance with its obligation under article 2(2) of the Covenant’ in order to establish criteria for statelessness, as well as reviewing its laws on eligibility to apply for citizenship, in line with article 24 of the Covenant.

There were two separate concurring opinions. The first opinion by Yadh Ben Achour stated that the Committee should have considered article 2(2) accompanied by the argument that there was in fact a direct and proximate cause of a distinct violation of the Covenant. It was further argued that there is a difference between a claim made under article 2(2) in conjunction with article 24 and a claim under article 24 by itself. The former relates to a violation of article 24 however, it specifically emphasises that the State is to blame for the harm suffered by the author. The second separate opinion by Hélène Tigroudja regretted that the Committee did not elaborate on article 7 (humane treatment) and article 16 (recognition of a legal personality) which should have been considered along with the violations that occurred in terms of article 24(3) of the ICCPR.

Reflections on relevant jurisprudence of the CRC committee

If the author had been able to approach the CRC committee under the CRC OP3, he would have had the full panoply of rights in the CRC available to him. He might have raised claims under article 2 (non-discrimination), article 3 (best interests), article 4 (all appropriate measures for implementation), article 6 (survival and development), article 7 (right to acquire a nationality), article 8 (right to identity), article 12 (right to be heard), article 22 (migrant children’s rights), among others.

However, I will focus on the articles that are similar to the articles under the ICCPR in respect of which he alleged violations. Article 2(2), the requirement to take the necessary steps to adopt such laws or other measures to give effect to the rights in the Covenant, is similar to article 4 of the CRC, the requirement to undertake all appropriate measures for implementation. It is interesting to note that the HRC did not find a violation of this right, because it was not a ‘proximate cause’ (and this was the subject of the separate opinion by Yadh Ben Achour). However, the CRC Committee does not apply a proximate cause requirement in respect of article 4. It is almost certain, therefore, that if the CRC Committee had been faced with D.Z.’s claim under article 4, it would have found a violation. Indeed, it is odd that the HRC did not do so – because even if the proximate clause test is applied, it is clear that a lack of legislation was a major part of the problem, thus the separate opinion by Achour is on point.

The CRC does not contain a direct article providing a right to a remedy, but the CRC Committee’s General Comment no. 5 on general measures of implementation (2003, para 24) observes that it is ‘implicit’ in article 4 (Liefaard, 2019). So it is likely that a finding of a breach of article 4 of the CRC could have covered both of the claims under articles 2(2) and 2(3) of the ICCPR. The CRC has not yet found a violation of article 4 in any of its Views, so this is an interesting space for development.

Article 24(3) of the ICCPR, requires that ‘[e]very child has the right to acquire a nationality’. This is similar to article 7 of the CRC which includes precisely the same right, in addition to the rights to birth registration, to a name and, as far as possible, to be cared for by his or her parents. The HRC found a violation of this right, and the CRC Committee may have done so too, although so far there are no views in which they did. In the case of W.M.C. v Denmark, which dealt with non-refoulement to China of a mother with three children, article 7 was invoked but the CRC Committee found that this claim was manifestly ill founded, as the births of the children had been registered in Denmark, and the mother had not substantiated her claim that they would be stateless if returned to China. However, as the case of D.Z. so clearly does engage statelessness, and as it is amply substantiated, it seems likely that the CRC Committee would have found a violation of article 7.

With regard to remedies, the HRC set not only an individual remedy, but a systemic one as well, aimed at preventing ongoing or future violations. This a very comprehensive remedy, and it is interesting to compare it within the similar remedies handed down by the CRC Committee. The early remedies of the CRC Committee tended to be vague. For example, in the case of N.B.F v Spain, the only remedy provided by the CRC Committee was a systemic remedy applying to all unaccompanied children: no individual remedy for the author was provided (see case note by Klaassen and Dorber). However, the CRC Committee’s, remedies have developed over time, in order for the rights violations to be to be addressed in a more specific manner.

In the matter of D.D. v Spain, the CRC Committee made both an individual and a systemic remedy that was more precise than the one in the N.B.F. case. In the matters of M.T. v Spain and R.K. v Spain the CRC Committee once again provided the individual remedy of effective reparation which included the opportunity to regularise administrative status. It also came with a systemic remedy that ordered Spain to prevent similar violations and provided recommendations on how Spain could prevent these violations. In this matter the systemic remedy recommended that Spain had to make appropriate provision for age determination. Measures included taking certain documents into consideration, assigning a qualified legal representative without delay and free of charge, to assign the victim with a legal guardian, to develop effective and accessible redress mechanism that allows review of decrees of majority and lastly, to provide training to immigration officers, police, prosecutors, judges and other professionals on rights of immigrant children with particular attention to General Comment 6, 22, and 23. Therefore, this matter provided a more specific and detailed remedy than that provided in D.D. v Spain (see case note by Ceriani Cernadas, 2020).

In the matter of A.E.A v Spain, a recent matter that came before the CRC Committee, the individual remedy required Spain to immediately enrol A.E.A. into a school, provide effective reparation, including adequate compensation as well as take measures to ensure that the child catches up on missed years of schooling. The individual remedy was specifically formulated to address the violation of the child’s rights in a more detailed manner than remedies in previous cases. There was also a systemic remedy to prevent future violations, which directed that the authorities must take effective and expeditious steps to confirm a child’s residence, and if the residence is confirmed, the child should be enrolled in school immediately. The remedy went on to require Spain to ensure that in the event of a dispute, there is an effective and accessible remedy and that the existence of such an option should be made known to the child and parents. Finally, the CRC Committee indicated that specialized training be provided for judges and administrative staff.

Although the HRC’s individual and systemic remedies were reasonably strong, the CRC Committee may have gone further, perhaps by providing a more child-focused remedy, by emphasising the procedural rights of children in the systemic remedy. It has done so in recent cases by requiring children to have representatives appointed, to have access to complaints mechanisms or be provided with appropriate information about where and how to access solutions at the domestic level. This provides States with practical guidance rather than merely requiring that best interests be considered, as the HRC directed. Given the shortcomings of the administrative authorities revealed in the fact of the case, training of those working in the field of migration is another action that the CRC is likely to have provided for.


The HRC, in the case of D.Z. recalled concluding observations by the CRC Committee where it was recommended that the “State Party ensure that all stateless children born in its territory, irrespective of residency status, be provided with citizenship without conditions”.

It is likely that, had the matter been presented to the CRC Committee, there would probably have been findings of violations of articles 3, 4, 7, 8, 12 and 22. The remedy of the HRC was a strong one, but the CRC Committee’s recent jurisprudence indicates that it was likely to have taken a similar approach to remedy, and would perhaps have gone further to provide a more child-focused remedy, with practical procedural guidance and training for authorities.

Perhaps the most important ‘take away’ from D.Z.’s case was that he was provided with access to justice and obtained an appropriate remedy, despite the fact that the Netherlands has not ratified the CRC OP3.

In July 2021, the Seychelles became the 48th state to ratify the CRC OP3, and when one compares this against the 196 states that have ratified the CRC, there is a long way to go to achieve full enforcement of children’s rights through this avenue. Child rights advocates should lobby for states to ratify, of course, but in the meanwhile, those assisting children to bring cases to the courts can consider other avenues, as D.Z.’s lawyers did. In fact, D.Z.’s lawyers paved an access to justice pathway through the Dutch courts, before finally turning to the HRC, with the assistance of strategic litigators from Open Society Justice Initiative and the Public Interest Litigation Project of the ICJ in 2016 (Bingham and Klaas, 2021). Child rights strategic litigators should therefore continue to seek alternative avenues to advance justice outcomes for children, while at the same time keeping the pressure up to call on states to ratify the CRC OP3.

  1. Smyth C. (2019) ‘Migration, Refugees, and Children’s Rights’ In Kilkelly U. and Liefaard T. (eds) International Human Rights of Children. Springer, Singapore. 427.